Documentos de Académico
Documentos de Profesional
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No. 04-7101
(E. D. Oklahoma)
(D.C. No. 04-CR-3-W H)
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Gruber on foot. M r. Gruber ducked behind a nearby passenger car parked on the
street in an attempt to hide himself from the pursuing agent.
W hen Agent Overby caught up to M r. Gruber, Agent Overby positioned
himself on the opposite side of the car, with the vehicle separating them. Agent
Overby identified himself with his gun drawn, told M r. Gruber that he was under
arrest, and repeatedly instructed M r. Gruber to keep his hands held high. For
both Agent Overby and M r. G ruber, the other w as visible from only the chest up.
M r. Gruber initially complied with Agent Overbys orders, keeping his hands up,
but then he moved for cover, dropped his hands to his waist out of the agents line
of sight, and bent down. As M r. Gruber made this maneuver, Agent Overby fired
his gun at M r. Gruber, and the bullet hit him in the neck. M r. Gruber fell to the
ground on his stomach with his hands underneath him. Backup officers arrived
on the scene and succeeded in restraining and arresting M r. Gruber. Then, as M r.
Gruber recites in his brief, when [M r. Gruber] was rolled over, a loaded .45
caliber semi-automatic pistol was found on the ground where his hands had been.
Aplts Br. at 7. Officers also found $9,746.00 in cash on M r. Gruber. Among the
confiscated money were eighteen of the twenty bait bills that had been taken in
the Ardmore robbery.
Subsequently, a grand jury indicted M r. Gruber in a multiple-count
indictment, charging him with: Count one, being a felon in possession of a
firearm and being a felon in possession of a firearm affecting interstate
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M r. Gruber guilty of count seven, but the district court granted the governments
motion to vacate this conviction. The jury found M r. Gruber not guilty on count
four.
At sentencing, the district court found that M r. Gruber was subject to
enhanced punishment under 18 U.S.C. 924(e), part of the Armed Career
Criminal Act (ACCA). Under 924(e), a person who violates section 922(g)
of this title [being a felon in possession of a firearm] and has three previous
convictions . . . for a violent felony . . . shall be fined under this title and
imprisoned not less than fifteen years . . . . Relying on Blakely v. Washington,
542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), M r.
Gruber objected to the determinations in the presentence report that he had been
convicted of three violent felonies for purposes of the ACCA, claiming that
such determinations were findings of fact that must be made by a jury beyond a
reasonable doubt and not by the sentencing court by a preponderance of the
evidence. Rec. vol. VIII, at 3. Concluding that M r. Gruber had three prior
convictions for violent felonies, the district court overruled his objection and
sentenced M r. G ruber to 687 months imprisonment applying 18 U.S.C. 924(e).
Id. at 4, 11. The district court additionally imposed a term of 36 months
supervised release on Count two, and a term of supervised release of 60 months
for C ounts one, three, five, and six, to be served concurrently. Id. vol. 1, doc. 44,
at 4. (Judgment in a Criminal Case, dated Sep. 15, 2004). Finally, the district
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court ordered M r. G ruber to pay the First National Bank restitution of $14,862.25.
Id. at 6.
II. D ISC USSIO N
On appeal, M r. Gruber asserts that there was insufficient evidence to
support a conviction for Count two of the indictment that alleged the violation of
18 U.S.C. 111(b), which provides for an enhanced penalty where a defendant
uses a deadly or dangerous weapon when assaulting, resisting, opposing,
impeding, intimidating, or interfering with a federal officer. Specifically, he
argues that there was no evidence of use because the complaining officer only
saw M r. Grubers hands drop from view as the two faced off on opposing sides of
the chest-high vehicle, and did not actually see M r. Gruber brandishing a
weapon. 1 M r. Gruber also challenges his sentence as being imposed in violation
of his constitutional rights, as recently articulated by the Supreme Court in United
States v. Booker, 543 U.S. 220 (2005). He contends that the district court
comm itted constitutional error when it concluded by a preponderance of the
evidence that his prior convictions were violent felonies under the ACCA. W e
address both these arguments below.
A.
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never actually saw M r. Grubers.45-caliber pistol while the two men stared at
each other from opposite sides of the parked car. Agent Overby testified that
when M r. Gruber dropped his hands out of sight, he assumed that M r. Gruber was
reaching for a weapon of some sort, but the agent never actually saw it. After
backup officers subdued M r. G ruber, they located the pistol on the ground.
This after-the-fact discovery may indeed have validated Agent Overbys
fear that M r. Gruber was holding a weapon. But it does not rise to the level of the
active employment definition of use, which includes brandishing, displaying,
bartering, striking with, and, most obviously, firing or attempting to fire a
firearm. Bailey v. United States, 516 U.S. 137, 148 (1995). In Bailey, the C ourt
distinguished between the terms carry and use in the context of 18 U.S.C.
924. Id. The Court gave use its ordinary and natural meaning and limited the
application of use to instances of active use, because otherwise no role w ould
remain for the term carry. Bailey, 516 U.S. at 147. M oreover, the Court
reasoned that use must mean something more than mere possession, since
Congress frequently employed the term possess in gun-crime statutes and
[h]ad Congress intended possession alone to trigger liability . . . , it easily could
have so provided. Id. at 143. Though Bailey does not deal with 18 U.S.C.
111(b), the reasoning is persuasive. The ordinary and natural meaning of use in
111(b) requires that a defendant must actively, in the Bailey sense, use the
deadly weapon to qualify for 111(b)s enhanced penalties.
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Sentencing Enhancement
W e next examine M r. Grubers argument that the district court violated
Booker by not submitting to the jury the question of whether his prior convictions
constituted violent felonies under the ACCA, 18 U.S.C. 924(e). A sentence
enhancement under the ACCA is a legal issue, and, thus, we review it de novo.
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United States v. M oudy, 132 F.3d 618, 619 (10th Cir. 1998).
W e agree with M r. Grubers admission in his brief that the deciding panel
in the present case is bound by [United States v.] M oore, [401 F.3d 1220 (10th
Cir. 2005)] and the prior conviction exception imposed by the Supreme Court.
Aplt. Br. at 17. W e note that M r. Gruber raises this issue as a preservation
technique to possibly overturn M oore by an en banc decision from this court or a
decision by the U nited States Supreme Court. Unless and until that happens, w e
are bound by the precedent of this court articulated in M oore. 401 F.3d at 1226
(Neither the existence of prior convictions, nor their classification as violent
felonies, constitute facts that must be charged in an indictment and proven to a
jury under a beyond a reasonable doubt standard.).
III. C ON CLU SIO N
Accordingly, we REV ER SE the district courts judgment on Count two and
REM AND for re-sentencing in accordance with this opinion. W e AFFIRM all
other aspects of the district courts judgment and its sentence.
Entered for the Court
Robert H. Henry
Circuit Judge
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partially successful, as he had removed the weapon from his waistband. After
Gruber was subdued it was found on the ground directly beneath him and
where his hands had been tucked under his belly. Unlike Bailey, where the
weapons were not accessible to the defendants, Grubers weapon was not only on
his person, but deployed. 1
Furthermore, 924(c)(1), the statute analyzed in Bailey, differs from this
one, 111(b), in a critical way. Section 924(c)(1) mandates certain penalties if a
defendant during and in relation to any crime of violence or drug trafficking
crime . . . , uses or carries a firearm. (Emphasis added.) In order to give effect
to the or carries language of the statute, the Court in Bailey chose a limited,
active interpretation of use: brandishing, displaying, bartering, striking with,
and, most obviously, firing or attempting to fire a firearm. Bailey, 516 U.S. at
146, 148; see Muscarello v. United States, 524 U.S. 125, 136 (1998) (In Bailey,
how ever, w e limited use of a firearm to active employment in part because w e
assumed that Congress . . . intended each term to have a particular,
nonsuperfluous meaning. A broader interpretation of use, we said, would have
swallowed up the term carry.) (internal citation omitted). The actual holding
1
of Bailey is that the language, context, and history of 924(c)(1) indicate that
the Government must show active employment of the firearm to establish use
for the purposes of the statute[.] Bailey, 516 U.S. at 144.
Section 111(b) makes no distinction between using and carrying a
weapon. It simply provides that [w]hoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon shall be subject
to an enhanced penalty. Thus, just as the Court in Bailey gave effect to Congress
use of tw o separate terms in 924(c)(1) use and carry so, too, should w e
give effect to the use of a single term in 111(b) use. A broader reading of
use in this case is consistent with the statutes language and supports the jurys
verdict.
This jury was instructed on the elements of assaulting a federal officer with
a dangerous weapon:
One: The defendant forcibly assaulted, resisted, opposed, impeded,
intim idated or interfered with an officer or employee of the United
States, Craig Overby[.]
Two: At the time, Craig O verby was engaged in official duties.
Three: The defendant used a deadly or dangerous weapon.
Forcibly means by use of force. A deadly and dangerous w eapon
is an object used in a manner likely to endanger life or inflict serious
bodily harm.
The term forcibly assaults means any deliberate and intentional
attempt or threat to inflict physical injury upon another with force or
strength when that attempt or threat is coupled with an apparent ability
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Overby trained his weapon on Gruber, identified himself as an FBI agent, and
ordered Gruber not to move. Gruber momentarily complied, raising his clenched
fists up to, but not over, his head. W hen Gruber suddenly dropped his hands out
of Overbys sight, the agent shot Gruber in the neck. Gruber dropped to his
knees and began screaming Im shot, Im shot. (Id. at 478.) He did not put his
hands to his neck (as one might expect) but instead lay on the ground on his
stomach with his hands and most of his arms tucked under his body, moving like
he was reaching for something. (Id.) Despite his injuries and the shouted orders
from several officers to put his hands behind his back, Gruber kept his hands
tucked underneath his belly until forced at gunpoint to comply. W hen Gruber was
finally handcuffed and rolled on his side, a handgun was found on the ground
beneath him. It was not only loaded, but a live round was in the chamber, ready
to fire with a squeeze of the trigger.
In addition, the jury heard Overby testify about what he knew prior to his
confrontation with Gruber: Gruber was considered armed and dangerous, he was
wanted for bank robbery, and he had made threats about going out in a blaze of
glory. (Id. at 499.)
response to the 911 call made on December 8 and he drew his weapon as soon as
he got out of his car to pursue Gruber on foot. The jury saw Overby demonstrate
the way in which Gruber put his hands up to his head, close to [his] ears, the
hands were shaking and they were clenched, kind of like a body builder flexing
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his muscles. (Id. at 475.) The jury watched Overby demonstrate how - and how
quickly - Gruber dropped his hands out of sight. Overby also testified that once
he saw Gruber on the ground, he was concerned that, that he was going for the
weapon again and was going to shoot, try to shoot [him] again. (Id. at 478)
(emphasis added).
Finally, Agent Bob Horn of the Oklahoma State Bureau of Investigation
testified about Grubers statements to him on December 8:
W hen he got out of the car, he was surrounded by approximately ten
police officers or officers and he heard one officer tell him to freeze
and that he reached for his weapon, indicating to me when I was talking
to him using his right hand reached to the front of his pants that he was
wearing indicating that he was reaching to his w aistband for his
weapon.
(Id. at 591-92.) The jury heard Horns testimony that Gruber said [h]e was
reaching for his weapon or had his hand on the pistol when Overby shot him.
(Id. at 592-93.) Gruber also told Horn, Its possible that I was just reaching for
the weapon to take it out and throw it on the ground and give myself up. (Id. at
593.) The jury could thus evaluate whether Gruber attempted to shoot, surrender
his weapon, or merely find solace in its cold, cozy grip.
Gruber does not argue the evidence was insufficient to show an assault on a
federal officer, only that his weapon was not used in the process. 2 The M ajority
2
I w ill not dwell upon the assault except to note: 1) the jury was properly
instructed (without objection) on the issue; 2) the jury could have concluded
Gruber was attempting to get his weapon (and did) when he dropped his hands
(continued...)
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(...continued)
below eye level; 3) the jury could have concluded Gruber would have used his
weapon against the federal agent had his actions not been thwarted by a bullet to
the neck; and 4) the federal officer was put in fear of bodily harm.
3
W ould there be any question about Grubers use of his weapon if it had
been in his hand, behind the car and below eye level, when Overby first
confronted him? Similarly, would it not also have been a use if another officer,
but not Overby, saw the weapon in Grubers hand after the unexpected and
aggressive move when Gruber dropped his hands out of Overbys sight?
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The district court may have unduly increased the governments burden of
proof. The instructions defined forcible assault as any deliberate and intentional
attempt or threat to inflict physical injury upon another w ith force or strength
when that attempt or threat is coupled with an apparent ability to do so. (R . Vol.
1, D oc. 38 at 22.) With respect to a different, but similar, assault statute we
recently concluded that recklessness is a culpable m ens rea with respect to
assault resulting in serious bodily injury under [18 U.S.C.] 113(a)(6). United
States v. Zunie, 444 F.3d 1230, 1233 (10th Cir. 2006).
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Overby complete when Gruber reached for his weapon. W ithout more, the
weapon was used during the assault. But there was more. Gruber grabbed the
weapon and removed it from his waistband a patent use.
The evidence not considered in bits and pieces but as a whole,
Wilson, 107 F.3d at 778 (quotations omitted) demonstrated an active use of a
firearm by Gruber sufficient to affirm the jurys verdict. I dissent from the
reversal and remand. However, I join the majority opinion affirming the other
aspects of the district courts judgment and sentence.
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